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Hence, whenever any doubtful question of law arises, the difficulty must now be solved either by searching among precedents or by studying statutes. In the next chapter we will discuss the best method of ascertaining from these sources the present law of the land.

CHAPTER IX.

HOW TO ASCERTAIN THE LAW.

BEFORE attempting to enforce the remedies which he believes himself to possess, an intending litigant should of course ascertain what are his precise legal rights. During litigation he can only obtain opinions, more or less accurate, on this matter; but at the close of the litigation he will have obtained a decision. He is naturally anxious to know beforehand what this decision will be; but this it is not always easy to foretell.

A practitioner who essays to write such an opinion should first make sure of the facts of the case on which he is advising; the presence or absence of one fact will often alter his client's legal position. He must, therefore, ascertain all the facts of the case clearly and accurately, and arrange them in strict chronological order; for so much depends upon dates. He should carefully read through every important document, and especially the correspondence which passed between the parties before any controversy arose. Having thus mastered the facts, he must proceed with due deliberation to ascertain the law applicable to such facts; and this he will find entombed either in legal decisions or in statutes, or in both.

The law of England on any given question, when once we can find out what it is, is generally reasonable and just. But the State makes no effort to promulgate the law in any clearly intelligible or readily accessible form. Hence private persons write and publish text-books. There are on any important subject at least three or four text-books of different sizes, written with different degrees of literary skill and legal knowledge, and therefore of very different value. The writer of a text-book should not merely repeat the same time-honoured phrases, the same long string of cases, the

same hackneyed extracts from the same judgments; he should make some effort to give the net result of the authorities, and to re-state the law in a clear and original canon. But even where this is done the text-book is not an authority; it cannot be cited to the Court as at all conclusive on the question; it cannot strictly be cited to the Court at all, so long as the author is alive.

Any practitioner, who has acquired dexterity in the use of text-books, indexes and digests, will however soon have before him some ten or twelve reported cases, which bear more or less remotely on the question at issue. If these all agree, his task is light; but this they seldom do. And even if the cases there before him appear to be all in his favour, still there are in the library of his Inn at least two thousand other volumes of reports, in any one of which may lurk a dictum or a decision disastrous to his case. These his energetic opponent is at the very moment industriously searching out; and on the day of trial both series of decisions, pro and con., will be paraded before the judge and discussed in the arguments of counsel and in the judgment of the Court.

It is in these reported decisions of the Courts, and in them only, that we find the principles of our law applied to the actual facts of everyday life-to facts, that is, differing widely in their nature, and occurring in an endless variety of novel combinations. Judicial decisions, indeed, afford the best, and oftentimes the only, evidence of what our unwritten law is; and, in arriving at these decisions, the judges are guided by established precedents and by the general principles of the law, of which such decided cases are only illustrations. When the decisions on any point appear to be in conflict, it is the duty of the judge, whenever the case before him requires it, to ascertain from the decisions themselves the general principle which underlies them all, and to state it clearly as a rule of law for the benefit of the public, who are entitled to know what is the law under which they live. When once a clear rule of law is thus ascertained and enunciated, it becomes a precedent which must be followed in all subsequent decisions; there must be uniformity in the

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law. "The only use of authorities or decided cases is the establishment of some principle which the judge can follow out in deciding the case before him. There is perhaps nothing more important in our law than that great respect for the authority of decided cases which is shown by our tribunals. Were it not for that our law would be in a most distressing state of uncertainty." The Court must decide the case before it on the same principles as it has decided similar cases in the past and will decide similar cases in the future. It must act in all similar cases in accordance with the same general rule; else law will cease to be a science.

A legal practitioner, then, who is constantly being asked by clients whether they shall commence or continue or defend legal proceedings, must learn two things: firstly, how to extract the principles of law from the decisions; and secondly, how to apply the appropriate principle to the facts of the case in which he is interested. He must weigh carefully each relevant case before he forms his opinion, and elicit if possible the rule of law which governs each separate decision. It is unsafe to dwell upon an isolated passage which seems to tell in his favour, while the rest of the judgment does not; it may be disastrous to his client thus to divorce a passage from its context and apply it to dissimilar facts. It is also unfair to the judge, whose mind was naturally occupied with the case actually before him, and not with any hypothetical and imaginary set of facts. "Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found." This does not mean, however, that a decision governs merely identical cases; it is a precedent for all cases in which the essential facts are identical. The practitioner must ascertain what facts are essential to the

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1 Per Jessel, M. R., in In re Hallett's Estate (1879), 13 Ch. D. at p. 712.

2 This is called the ratio decidendi of that case.

3 Per Lord Halsbury, L. C., in Quinn v. Leathem, [1901] A. C. at p. 506. This rule is often thus expressed: "A judge's observation must be taken secundum materiam.”

decision before him, and then contrast them with the essential facts of the case on which he is advising. To test whether a fact is or is not essential he must ask himself, Would the case be decided otherwise if this fact were absent?

Having thus ascertained from each decision separately the principle which governed it, his next step is to contrast each of these decisions with others bearing on the same point. But it sometimes happens that the decisions seem to be in conflict. Often this conflict is apparent rather than real; on investigation it will be found that the essential facts of the two cases are not identical; hence decisions, which are apparently in conflict, will often be reconciled as soon as one ascertains on what facts they respectively depend. The first case may be on one side of a border line, and the second on the other. One case, for instance, may refer to a compulsory and the other to a voluntary liquidation; or in one case the female defendant may have been married before January 1st, 1883, and in the other after that date; and so any apparent discrepancy disappears.

But if the conflicting cases cannot be thus distinguished, the practitioner is face to face with this difficulty: different Courts, when dealing with identically the same facts, have laid down different rules of law. Even for this calamity well-known rules of practice have been provided. "There is no statute or common law rule by which one Court is bound to abide by the decision of another of equal rank; it does so simply from what may be called the comity among judges. In the same way there is no common law or statutory rule to oblige a Court to bow to its own decisions; it does so again on the ground of judicial comity." 1 This so-called comity has, however, been formulated into rules which, though unwritten, are habitually followed by our Courts.

The most recent decision of the House of Lords on any point is binding on all Courts of inferior rank. It is also binding on the House of Lords itself. This is so, even although on the former occasion the House was equally

1 Per Brett, M. R., in The Vera Cruz (No. 2) (1884), 9 P. D. at p. 98.

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